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trial, it would seem as though he impliedly represented to the court that the case was at issue and a proper one to be tried. Accordingly, it would seem as though he were estopped from asserting that the case was not at issue. It is true the statute says “issue shall not be deemed joined,” but the fact is that the filing of the answer makes the issues, either by the denials or admissions therein contained. The statutory declaration that "issue shall not be deemed joined” really creates a legal fiction, as it were, which it would seem that the party intended to be the beneficiary, might very well waive.
Where the tenant insists upon a full compliance with the statute in regard to the filing of a bill of particulars and asks for an adjournment until this is done, his request must be granted, for the case is not at issue until a proper bill has been filed. 31
The tenant, however, need not confine his request, in such a case, to one for an adjournment. He may ask, as he has the right by the statute to do, for a dismissal of the complaint. 32
In regard to the second consequence of a failure to file a bill of particulars, the language of the statute is unequivocal: “the court, upon motion ... shall dismiss the complaint." There is no discretion vested here in the court. What, then, may the landlord do to avoid the imposition of this rather radical and serious consequence?
The bill of particulars, according to the statute, must be filed “within five days after the filing of the answer or within such time as the court upon good cause shown may determine."
31 190th St. Realty Corp. v. Crowell, 188 N. Y. Supp. 204.
32 190th St. Realty Corp. v. Crowell, supra; Guide Realty Co. v. Driscoll, 189 N. Y. Supp. 159 (App. Term, 1st Dept.); Willetts v. Neulicht, 188 N. Y, Supp. 88 (App. Term, 1st Dept.).
This latter alternative constitutes sufficient authority for the court to afford time to a plaintiff or landlord, as the case may be, to file the bill of particulars, after the five days. The court, however, may not arbitrarily extend the time to file the bill, but may do so only if “good cause" be “shown." By that is meant some good excuse for an extension of time beyond the five days' limitation, which will appeal to the sound discretion of the court. If, therefore, a motion is made by the defendant or tenant to dismiss the complaint for failure of the plaintiff or landlord to file the bill, the court may properly "grant the motion, unless the bill be promptly filed within a certain definite extension of time," provided the plaintiff or landlord has shown by affidavit a good reason for an extension of time to file the bill of particulars.33 If, however, no such good cause be shown, the court is obliged to grant the motion to dismiss the complaint or petition.38
Where the landlord refuses to furnish particulars in one of the respects required by the statute, upon application by the tenant, the complaint or petition must be dismissed.34
If the tenant has failed to make the proper deposit, the court is obliged to strike out the denial or defense raising the issue of unreasonableness of rent.
It is, accordingly, competent for the landlord at the trial to show facts tending to prove that the tenant has failed to make the correct amount of deposit in accordance with the requirement of the statute.35
38 Orinoco Realty Co. v. Weil, N. Y.L. J., Feb. 1, 1921, page 1497, Cohalan, J. 332 See cases cited under note 32, supra. *4 Guide Realty Co. v. Driscoll, 189 N. Y. Supp. 159 (App. Term, 1st Dept.).
35 Gomil Realty Co. v. Schulman, No. 313, App. Term, 2nd Dept., July 7, 1921, not reported.
In the case of an ordinary bill of particulars, other than this special statutory bill, the usual practice in the event of failure to file a bill of particulars as demanded is to make a motion that the court direct the bill to be filed. If a bill has been filed and is defective, the practice is to move to compel the filing of a further bill. If either order of the court be not complied with, the party requiring the particulars has the right to ask the court, by motion, to preclude the other party from the right to present at the trial evidence in respect to the matters as to which he failed to file the necessary bill of particulars.
These remedies, it seems, would not be available in respect to this statutory bill of particulars, 36 since the statute itself prescribes the penalties or consequences of failure to comply. In fact, no other remedy would appear to be necessary, since the statute prescribes remedies quite ample for the protection of the defendant or tenant.
The bill of particulars is required to be verified, which
"sworn to be true," and the verification should take the form required in pleadings which are verified. This form is specified in section 526 of the Code of Civil Procedure, and is as follows: 37
"The affidavit of verification must be to the effect, that the pleading is true to the knowledge of the deponent except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true. Where it is made by a person, other than the party, he must set forth, in the affidavit, the grounds of his belief, as to all matters not stated upon his knowledge, and the reason why it is not made by the party."
so Agra Holding Co. v. Wiggins, N. Y. L. J., Dec. 22, 1920, page 994, Burr, J. 37 After Oct. 1, 1921, this provision will be found in Civil Practice Rule 100.
DISTINCTION BETWEEN STATUTORY AND ORDINARY BILLS OF
The function of the ordinary and customary bill of particulars is two-fold, to "amplify the pleadings ” 38 and to "limit generalities.”' 39
As stated by the court in the case of Slingerland v. Corwin, 40 the purpose of a bill of particulars “is only to amplify the pleading and indicate with more particularity than is ordinarily required in a formal plea the nature of the claim made, in order that surprise upon the trial may be avoided and the issues more intelligently met."
The bill of particulars required by the statute under consideration has for one of its objects the prevention of surprise at the trial, according to the statement of the Legislative Committee accompanying the bill. 41 But the scope of the particulars required is very much beyond that of the ordinary and customary bill of particulars ordered by courts.
USE OF BILL AS EVIDENCE
The particulars required really partake of the nature of evidence. The statement of gross income and expenditures, the consideration paid for the property and other details required in the statutory bill of particulars, are more in the nature of facts which might be elicited by an examination of the landlord before trial than they are those usually required to be stated in a bill of particulars. It may be that, because of the nature of this statutory bill of particulars,
38 Dwight v. Germania Life Ins. Co., 84 N. Y. 493, 506; Starkweather v. Kittie, 17 Wend. 20.
39 Gee v. Chase Mfg. Co., 12 Hun, 630; Adams v. Dodge (Sp. Term, Supreme Court, N. Y. Co., Bijur, J.), N. Y. L. J., March 3, 1921.
40 105 App. Div. 310, 311.
the courts may hold that it may be regarded as in the nature of an examination of a party before trial and used at the trial accordingly. As it is, the statute is silent in respect to the use which may be made of this bill of particulars at the trial of the action or proceeding. Questions in respect to the extent of its use at the trial are arising daily in the courts. As yet there have been few authoritative rulings on the point. Some discussion of this very important question would seem to be in order.
No matter in what aspect we regard this statutory bill of particulars, it is certain that the defendant or tenant may offer in evidence the bill or any relevant fact therein contained for the purpose of establishing any fact which the defendant or tenant is required to establish.42
If a party to an action or proceeding makes an admission of a fact material to the issue, it is always competent for the adverse party to put it in evidence. If admissions are contained in a pleading in an action or proceeding (and the bill of particulars may be so regarded for this purpose), they are conclusive in that action or proceeding against the party making the admissions. They are admissions against interest and as such are clearly competent against the party making them.
The tenant or defendant is not bound by the admission of the landlord or plaintiff in the complaint, petition or bill of particulars, which is offered in evidence, but is at liberty to use it so far as it works in his favor, and to disprove the residue. He is not estopped by it. 44
Even though the tenant offer the entire bill in evidence,
42 Abbott's Trial Evidence, p. 378; Cook v. Bart, 44 N. Y. 156, 158.
s Ice Co., 73 N. Y. 543, 550; Cromwell v. Hughes, 12 Misc. 372.